Discrimination is alive and well

June 14 2003

Unfair laws force an honoured Australian to live in New Zealand. Change is overdue, writes Brian Greig.

In 1994, Nick Toonen from Tasmania achieved international acclaim as the signatory to a complaint lodged with the United Nations against his state's anti-gay laws. The complaint was later upheld by the UN's Human Rights Committee in a finding that eventually changed Australian and international law.

This week, Nick Toonen was awarded an Order of Australia, in recognition of his work in fostering a greater understanding of gay and lesbian rights.

He will be travelling to Australia from New Zealand to accept the award and meeting with fellow award winners Rodney Croome and Richard Hale from the Tasmanian Gay and Lesbian Rights Group.

But the irony is that this human rights campaigner will be receiving his award alone, because his partner cannot enter Australia with him as a married partner would. The very laws and attitudes that Nick Toonen is being awarded for opposing are still in place.

Today, Nick Toonen lives in political asylum in New Zealand, outcast by Australian immigration laws that discriminate against gay couples. Toonen's Filipino partner cannot settle in Australia until the couple have lived together abroad for a year and overcome a lengthy application process. This discrimination does not usually apply to married couples, but in Australia gay couples have only very limited legal recognition. New Zealand, by contrast, has welcomed this couple under its policy of non-discrimination.");document.write("

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Most Australians breathed a sigh of relief when the Tasmanian anti-gay law case was over, embarrassed that as a nation we were being portrayed internationally as intolerant poofter-bashers. Yet, we are in fact still years behind. Little has changed in the decade since Toonen v the Commonwealth.

Most Western countries now outlaw discrimination against gay and lesbian people with national laws and, to varying degrees, legally recognise same-sex relationships. Australia has refused to do so under both Labor and Liberal federal governments.

We remain the only Western country without a bill or charter of rights and remain one of the few Western countries without national anti-discrimination laws to protect the civil liberties of gay and lesbian people.

While most states and territories have come a long way in addressing this, the Commonwealth is lagging far behind. As a consequence, the Federal Government is the most frequent discriminator against gay and lesbian people.

Federal laws encompass appalling levels of institutional discrimination that would be unthinkable if applied to other groups in Australia.

For example, under Commonwealth law, the surviving partner in a same-sex relationship has no automatic right to receive the superannuation contributions of their partner when he or she dies. And if they do access this money, they are required to pay up to 35 per cent tax on the lump sum - an imposition that does not apply to married or de facto couples. Given that superannuation is compulsory, many gay and lesbian people are forced to subscribe to a scheme that discriminates against them and their partners, irrespective of directions contained in their wills.

While the ban on gay and lesbian personnel serving in the Defence Force was lifted in 1992, there are no spouse relocation allowances for same-sex couples. Given that defence personnel are moved around Australia roughly every two years, this places exceptional strain on gay and lesbian couples who are denied "married quarters" on Defence Force bases, unlike their heterosexual counterparts. Worse still, the partners of gay and lesbian personnel serving overseas are treated differently from other "spouses".

In industrial relations, it remains lawful to refuse to hire or promote a person on the basis of their sexuality, and most entitlements do not apply to same-sex partners, including bereavement leave and workers' compensation.

Indeed, all Commonwealth legislation that touches on relationships - whether it's aged care, family law, taxation, Medicare, veterans' affairs or superannuation - discriminates against same-sex couples. The discrimination mostly affects personal finances, penalising not only same-sex couples but also the children many of them are raising.

The fundamental problem for gay and lesbian Australians is that there are no national anti-discrimination laws, such as exist for race, age, sex and disability. Without this framework, and with a Human Rights Commission that is virtually powerless to act on anti-gay discrimination, tens of thousands of Australians suffer injustice with impunity.

The Australian Democrats' Sexuality and Gender Status Bill would comprehensively address this issue, but both Labor and the Coalition refuse to debate it, let alone support it.